Commercial Trust Co. v. New England Macaroni Manufacturing Co.
| Citation | 247 Mass. 366 |
| Court | United States State Supreme Judicial Court of Massachusetts |
| Decision Date | 04 January 1924 |
| Parties | COMMERCIAL TRUST COMPANY v. NEW ENGLAND MACARONI MANUFACTURING COMPANY & others. |
December 12, 1923.
Present: RUGG, C.
J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.
Bills and Notes Notice of dishonor, Presentment. Evidence, Of notice by mailing, Presumptions and burden of proof.
At the trial of an action by the payee, a trust company, against indorsers of a negotiable promissory note, there was evidence tending to show that a notice of dishonor, signed by the plaintiff's teller and addressed to each of the indorsers at his place of business or residence, was made out on the due date of the note and was placed on the mail clerk's desk in the plaintiff's banking house, and the teller testified without objection that, according to the general practice the mail clerk at the close of business every day stamped the mail and put it in a bag which
"he took over to the post office and left at the office." There also was evidence that on the due date of the note the mail in the plaintiff's office was stamped and put in the mail bag that each envelope bore the plaintiff's return address and that no mail addressed to the defendants was returned to the plaintiff. Held, that
(1) It could not be ruled as a matter of law that no notice of dishonor was sent by the plaintiff;
(2) A finding was warranted that notice of dishonor was duly given.
The provisions of the negotiable instruments law, G.L.c. 107, have not changed the rule of the common law previously established, that a note payable to a bank at its place of business is presumed, in the absence of evidence to the contrary, to be at the bank at its maturity; so that, at the trial of an action by the payee against indorsers of such note after dishonor, evidence of formal presentment and demand upon the maker is not required.
CONTRACT, by the payee of a negotiable promissory note for $2,000 against New England Macaroni Manufacturing Company, the maker, and Neal J. Holland, William Lee, James F. O'Byrne, Philip Kelson and Philip S. Silbert, indorsers. Writ dated August 17, 1920.
In the Superior Court the action was heard by Fessenden, J., without a jury. Material evidence and requests by the defendant for rulings are described in the opinion. The trial judge found for the plaintiff in the sum of $2,262. The defendants alleged exceptions which, after the resignation of Fessenden, J., were allowed by Wait, J.
The case was submitted on briefs.
M. J. Sullivan, for the defendants Holland and Lee.
F.
G. Wooden & H.
P. Small, for the plaintiff.
This is an action on a promissory note in the sum of $2,000, dated April 24, 1920, and payable in ninety days to the plaintiff at its place of business. The maker is the New England Macaroni Manufacturing Company, and the other defendants are indorsers. Holland and Lee, two of the indorsers, requested the trial Judge to rule: (1) "That upon all the evidence, the plaintiff is not entitled to recover;" and (2) "That upon the law, the plaintiff is not entitled to recover."
These requests were refused and the indorsers Holland and Lee excepted. There was evidence from witnesses familiar with the handwriting of Holland and Lee that their signatures were genuine. See Commonwealth v. Nefus, 135 Mass. 533 , 534.
A written notice of dishonor, signed by the teller of the trust company and addressed to each of the indorsers at his place of business or residence, was made out on July 23, 1920, and placed on the mail clerk's desk in the plaintiff's banking house. The teller testified, without objection, that according to the general practice the mail clerk, at the close of business, stamped the mail and put it in a bag which "he took over to the post office and left at the office;" that this was done "every day." There was further evidence that on July 23, 1920, the mail was stamped and put in the mail bag, and that on all the envelopes used by the plaintiff appeared the inscription "If not delivered within three days return to Box 1245 Springfield, Massachusetts;" the post office box 1245 was the plaintiff...
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